City Ice & Fuel Co. v. Snell, 22613.

• Decision Date: 24 February 1933
• Docket Number: No. 22613.,22613.
• Citation: 57 S.W.2d 440
• Parties: CITY ICE & FUEL CO. v. SNELL.
• Court: Missouri Court of Appeals

57 S.W.2d 440

CITY ICE & FUEL CO. v. SNELL.

No. 22613.

St. Louis Court of Appeals. Missouri.

February 24, 1933.

Rehearing Denied March 9, 1933.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

"Not to be published in State Reports."

Suit by the City Ice & Fuel Company against William L. Snell. From a decree for defendant, plaintiff appeals.

Reversed and remanded with directions.

Daniel Bartlett, of St. Louis, for appellant.

Henry Ebenhoh, of St. Louis, for respondent.

McCULLEN, Judge.

This is a suit for an injunction brought by plaintiff (appellant here) to restrain defendant, one of its former employees, from violating a written contract.

The trial court issued a restraining order and an order to show cause why a temporary injunction should not be issued.

At the hearing on the order to show cause the parties stipulated that the evidence then taken should be considered as on the merits, final decree to be entered accordingly.

The trial resulted in a decree denying a permanent injunction, dissolving the temporary restraining order, and dismissing plaintiff's petition. After an unavailing motion for a new trial, plaintiff brings the case here by appeal.

Plaintiff's petition alleged that plaintiff is an Ohio corporation duly licensed to do business in the city and county of St. Louis, Mo., the business being principally the manufacture of ice and the sale and delivery of ice, coal, and fuel oil; that on November 3, 1931, defendant was employed by plaintiff to deliver, sell, and solicit orders for ice, coal, and fuel oil in the city of St. Louis within a district known as "Branch X," bounded on the east by Grand avenue, on the south by Arsenal street, on the west by Fifty-Ninth street, and on the north by Park avenue and the Frisco Railroad tracks in said city; that on November 3, 1931, plaintiff and defendant entered into an agreement in writing, which provided that in consideration of plaintiff continuing to employ defendant, upon defendant's leaving such employment defendant would not, in any way, for a period of one year thereafter, sell, solicit, or deliver ice, coal, or fuel oil, or collect for ice, coal or fuel oil in the district described; that on or about June 16, 1932, defendant left said employment and thereafter, in violation of said agreement, engaged in, and was threatening to continue, selling, soliciting orders for and delivering ice, and collecting for ice within said district.

The petition further alleged that plaintiff's business in said district was and is an established business of great value to plaintiff, and that defendant's acts in violation of said agreement are greatly damaging and injuring plaintiff's business therein; that defendant is insolvent and has no property out of which a judgment for damages for breach of contract could be satisfied.

The prayer of the petition was for a writ of injunction enjoining and restraining defendant from selling, soliciting, or delivering ice, coal, or fuel oil, or collecting for ice, coal, or fuel oil in said territorial district for a period ending June 16, 1933.

Defendant's return contained a general denial, coupled with allegations as follows:

"Defendant states that he was employed by the plaintiff prior to the date of the execution of the contract mentioned in plaintiff's petition, and said contract mentioned and described in plaintiff's petition was executed by the defendant without consideration moving from plaintiff to him and was obtained from defendant by duress.

"Defendant states further that the contract mentioned and described in plaintiff's petition is in restraint of trade and invalid.

"Defendant states further that the plaintiff discharged the defendant without a reasonable cause and itself created the condition of which it now complains and is not entitled to the relief for which it prays.

"Wherefore, defendant prays this honorable court to refuse a permanent injunction against him and further prays that the temporary injunction heretofore granted against defendant be dissolved."

The written contract upon which the controversy arises, omitting signatures, is as follows:

"In consideration of the City Ice & Fuel Company continuing to employ Wm. Snell, I agree that upon his leaving the employment of the City Ice & Fuel Company, either voluntarily or otherwise, that for a period of one (1) year after leaving the employment of the City Ice & Fuel Company he will not, either directly or indirectly, in any way, sell, solicit or deliver ice, coal or fuel oil, or collect for ice, coal or fuel oil, on or over the district known as No. Br. X which covers the territory bounded by Grand avenue on the east, Arsenal street on the south, Fifty-Ninth street on the west, Park avenue and the Frisco R. R. tracks on the north.

"In witness Whereof the parties hereto set their hands at St. Louis, Mo., this 3d day of Nov., 1931."

Plaintiff introduced as a witness Fred Saller, its manager of Branch X, who described the boundaries of Branch X, showing them to be as alleged in plaintiff's petition. He testified that defendant had been employed by the Union Fuel Company as an ice driver, and became an employee of plaintiff when plaintiff took over that company's business in July, 1931, and that he left the employ of plaintiff on June 16, 1932; that the contract was signed on November 3, 1931. The witness gave testimony tending to show that Branch X is a valuable and growing branch of plaintiff's business; that the ice drivers of the company, of whom defendant was one, have all the addresses of the customers residing in that branch. He described the method by which the company carries on its business through its drivers, showing that the drivers get new customers for the company —the more customers, the larger the driver's weekly or monthly pay—that the drivers are given time to solicit and deliver and that when a driver has been selling ice over a particular route for some time he acquires knowledge of the names of the customers, and that if the driver quits the company and goes into business for himself, or goes to work for some other company in that line in the territory mentioned, the company loses business. It was admitted by his counsel that defendant signed the written contract in question, and that he did sell and deliver ice within the territorial district named prior to the expiration of the year mentioned in the contract.

There is a sharp conflict as to the manner in which defendant's employment was terminated. Plaintiff contends that defendant quit his employment voluntarily. Defendant claims that he was discharged by plaintiff to avoid a strike of its drivers because defendant had not paid his dues to his union.

On this point plaintiff's branch manager testified that about May 15, 1932, he was called by his superintendent and told that defendant was in arrears with his dues to his union and that the union's officials were complaining about it; that he told defendant about this and that defendant shrugged his shoulders and said: "What can I do; I can't pay them." That he advised defendant to make some kind of an agreement with the union officials because he felt that defendant was a valuable man to the company and he wanted him to continue on with his work. That about June 1, 1932, the union officials again notified him that defendant was still in arrears in his union dues; that he called defendant's attention to it and that on June 16, 1932, the union officials came out and would not let defendant go to work unless he paid his dues to the union; that defendant did not make any effort to go to work on that morning; that he asked defendant what was the matter, and defendant answered, "These fellows won't let me go to work"; that he asked what the trouble was, and that the union officials said, "That man has to pay up before he goes to work"; that witness answered, "I can't tie up that route"; that the union officials said, "We will tie them all up if he takes out a truck." At this point the branch manager was asked questions and answered: "Q. Well, then, you refused to permit him to take out a truck? A. No, he never made no effort to take it out. I told him to take it out. He says they won't let him take the truck out himself." He further testified: "My company did not discharge him....